Roberts v. Commissioner of Social Security
MEMORANDUM ORDER. Signed by Magistrate Judge Roy S. Payne on 11/16/2022. (ch, )
Case 2:20-cv-00243-JRG-RSP Document 26 Filed 11/16/22 Page 1 of 2 PageID #: 1287
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LORIE ANN ROBERTS,
COMMISSIONER, SOCIAL SECURITY
Case No. 2:20-cv-0243-JRG-RSP
Currently before the Court is the Petition and Brief for Award of Attorney Fees Under the
Equal Access to Justice Act (Dkt. No. 23), filed by Petitioner on May 31, 2022. The motion seeks
compensation for 26.35 hours at the adjusted statutory rates permitted by the Act, for a total of
$5,620.62. The Commissioner has filed an opposition limited to the hourly rate claimed for
services performed in 2022. The Commissioner argues that a proper application of the Consumer
Price Index requires using the 2021 rate of $206.70 for the 2.3 hours worked in March and May
2022, rather than the $220.10 calculated by Petitioner. This would result in a total fee of $5,589.80,
which is $30.82 less than the request.
The Equal Access to Justice Act (EAJA), 28 U.S.C. §2412, allows a prevailing party in
litigation against the United States, including a petitioner for Social Security benefits, to recover
her attorney’s fees “unless the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust.” Id. at §2412 (d)(1)(a). The Supreme
Court has explained that “EAJA fees are determined not by a percent of the amount recovered, but
by the ‘time expended’ and the attorney’s ‘hourly rate,’” which is statutorily capped. Gisbrecht v.
Barnhart, 535 U.S. 789, 794, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002). See generally, Murkeldove
Case 2:20-cv-00243-JRG-RSP Document 26 Filed 11/16/22 Page 2 of 2 PageID #: 1288
v. Astrue, 635 F.3d 784, 789 (5th Cir. 2011). The Commissioner does not contend, nor does the
Court find, that the position of the government was substantially justified or that any special
circumstances exist rendering an award unjust. The Court finds that Petitioner’s requested fee is
appropriate. After reviewing the briefing, the Court finds that the predominance of authority
supports the Petitioner’s position. However, the Court also finds that the Commissioner’s position
was substantially justified and that no fees should thereby be awarded under the Act for the reply
Accordingly, IT IS ORDERED that Defendant will pay Petitioner $5,620.62 in EAJA
fees, which amount is in addition to, and not out of, Petitioner’s past due benefits. In accordance
with the Supreme Court’s decision in Astrue v. Ratliff, 130 S.Ct. 2521 (2010), this award will be
payable to Petitioner, by delivery to her counsel of record.
SIGNED this 3rd day of January, 2012.
SIGNED this 16th day of November, 2022.
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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